This Blog is is written by Ipshita Goyal Senior Executive and Editor-in-Chief at LegalThirst. She is currently a student of 2nd year of B.A.LL.B. (Hons.).
#Introduction
The increasing popularity of Social media has changed the way brands and businesses advertise their products and services. In today’s trendy modern world, a Company’s online presence greatly impacts its popularity. All brands that are customer-based have recognized the power of trends and are using them for digital marketing of their products and boost their market visibility and profit.
#What are Hashtags and how they are used?
In the year 2006, Twitter was the first social media platform to introduce the concept of hashtags to the world of social media. So basically, Hashtags are a combination of words or phrases that are preceded by a hash (#) symbol. Hashtags help the user to create, identify, follow and contribute to a particular conversation on social networking sites and other internet applications.
As the user-generated content around hashtags increases, it becomes viral and a new trend is set. Hashtags are not commonly used to create profit by the business organization but also to set up a new trend and it acted as a medium to hyperlink all posts that had the same # symbol allowing the users to view the information and images related to these hashtags together in an organized manner at one place. In the year 2020, these hashtags were popular and were in trend like #follow4follow #photography #dalgonacoffee, in 2021 the #dontrushchallege #makeupinsta #selfie among others had gained popularity. Certain hashtags are evergreen like #OOTD, #throwbackthursday #outfitoftheday which social media users add as a caption to their pictures while sharing them on social media.
#HashtagForBigBrands
The New York Fashion Week 2016, which was one of the biggest and most awaited events in the fashion industry, designers launched hashtags such as #FentyXPuma, #YeezySeason3, #AllAccessKors, #TommyFall16, and #MyCalvins displaying their latest fashion collections by allowing followers live and behind-the-scenes to look at their NYFW shows, that triggered more than 561,000 mentions on social media in just a single week.
GoPro is a famous brand that manufactures action cameras and mobile apps and uses #GoPro for creating value, promoting new products, and interacting with their customers. This hashtag has more than 48.2 million posts just on a social media platform like Instagram. #WantAnR8 by Audi, #NationalFriedChickenDay by KFC, Nike’s #justdoit, #ShareACoke by Coca-Cola, #sayitwithpepsi by Pepsi and #CaughtOnDropCam by Google, #LetsDoLunch by Domino’s Pizza, #OreoHorrorStories by Oreo, #WorthSaying by L’Oréal Paris, theseare some examples that show hashtags of some popular brands that are using them as a medium to promote and distinguish their products.
Sometimes choosing the right hashtag for your brand or having millions of social media followers does not always mean that your campaign is going to work. Some campaign ideas backfired massively like #McDStories by McDonald’s, #WTFF by Burger King
However, can hashtags be registered under Intellectual property? Can you stop others from using your hashtag? So, here’s the answer!!
#Intellectual Property
Many types of Intellectual Property rights are recognized by the World Intellectual Property Organization i.e. Copyright, Patents, Trademarks, etc. Each of these governs and protects different areas of work. For instance, Copyright offers protection to artistic works like books, music, paintings, films, etc. It protects expressions not ideas whereas Patents protect inventions and processes. Trademark is a type of intellectual property consisting of some words, phrases, symbols, design, or any combination of these that could be used to distinguish the product or services of one person or a brand from those of other brands.
So, Hashtags are neither expressions nor inventions and hence can’t be protected under patent or copyright protection but a hashtag fits best for protection under trademark law.
In India, trademarks law is governed under Trademark Act, 1999. According to Section 2(1) (ZB) of the Act, “trademark” means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include the shape of goods, their packaging, and combination of colors.
So, Trademark Law considers two main conditions and these are:
- it should be capable of being represented graphically
- it should be capable of distinguishing the goods and services of one person from another person.
The first condition is fully qualified for hashtags to be registered as a trademark as it is a combination of words and numerals that are represented graphically. But the real problem arises with the second condition. The Hashtag must be capable of being identified as a source identifier of the brand or organization to become eligible under trademark law.
Furthermore, There are Absolute grounds for refusal of registration under Section 9(1)(A) which says—
(1) The trademarks—
(a) which are devoid of any distinctive character, that is to say, not capable of distinguishing the goods or services of one person from those of another person.
Therefore, the hashtags which do not have any distinctive character or are not capable of being distinguished can not be given protection under trademark law in India.
For instance, if you want to trademark #beauty, it’s sure to be rejected, because it’s not a distinctive mark that does render as a brand identifier of a brand or organization. So, it is clear that a hashtag can be registered under trademark law but must fulfill these two conditions. Shockingly, a vast nation like India has no hashtags to be registered as trademarks in India. Some Multinational brands like Pepsi have successfully registered hashtags like #sayitwithpepsi or Coco-Cola #smilewithcoke.
#Infringement
InFraternity Collection LLC v. Elise Fargnoli, the US District Court has settled a trademark infringement case where the court considered a hashtag as a trademark. The court founded in that case that there was trademark infringement and false advertising by the defendant, Elise Fargnoli. She was a former employee at Fraternity Collection and a fashion designer. She had used the hashtag “#fratcollection” and “#fraternitycollection” on her Instagram accounts to promote a product of competing fashion designs. The users on clicking the hashtag were directed to the same designs of fraternity collections and traffic was channelized to the products manufactured by its competitors. Even though the matter was eventually settled by the parties, the court held that there was a trademark infringement and false advertising by the defendant.
Registering your hashtag under trademark law does not prevent other users from including it in their social media posts, it will not give you a monopoly over the use of the hashtag. However, it provides you the legal protection in the case when another brand uses it to promote a competing product or service within the same industry as yours.
There is no doubt in the fact that Digital Marketing in the social media era has boosted the sales of the brands and the registration of Hashtags has also strengthened the presence of Brand Names in the crowd of hashtags. The hashtags now relate to the brand’s goodwill and that’s why infringement issues of using the Brands’ Goodwill in the hashtag. Brand owners are now considering the use of hashtags in their marketing strategy and focusing on more such legal ways by which Intellectual Property Rights can be used as a way to promote the brand digitally. #Hashtags are worth protecting under IP Laws in the same way the Brand Name is worth protecting under Trademark.
Disclaimer: The opinions and views in the articles and research papers published on this website; are personal and independent opinions of the author. The website is not responsible for them.
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